Kyaw
Hla Win @ Md. Hassan Ahmed had been a lecturer of law at
Management & Science University (MSU). Currently, he is a part-time
lecturer of law at University of Malaya (UM) as well as International Islamic
University Malaysia (IIUM) and also a Doctoral candidate in the area of
international law at International Islamic University Malaysia (IIUM).

The
Republic of the Union of Myanmar (hereinafter ‘Myanmar’), formally known as
Burma, is a sovereign State in Southeast Asia bordered with Bangladesh, India,
China, Laos and Thailand. Its coastline is bordering from the Bay of Bengal to
the Andaman Sea between Bangladesh and Thailand. It has a total of 261,227 sq
miles (676,578 sq km) territory which approximately consists of 252,319 sq
miles (653,508 sq km) land territory and 8,907 sq miles (23,070 sq
km) coastline. It is constituted with seven Regions as
well as States and Union territories, namely, Kachin State, Kayah State, Kayin
State, Chin State, Sagaing Region, Taninthayi Region, Bago Region, Magway
Region, Mandalay Region, Mon State, Rakhine State, Yangon Region, Shan State,
Ayeyawady Region and Nay Pyi Taw as the Union territory. Nay Pyi Taw is also
the current capital city of Myanmar [section 45 & 50, the Constitution
of the Republic of the Union of Myanmar 2008. Hereinafter “the 2008
Constitution”] and Yangon, the former, remains as the
commercial capital city. According to the Central Intelligence Agency, Myanmar
is rich of natural resources such as antimony, coal, copper, hydropower, lead,
limestone, marble, natural gas, petroleum, precious stones, timber, tin,
tungsten, zinc and so forth. The society of Myanmar is multi-ethnic as well as
multi-religious in nature and Burmese is the official language. It politically practises multi-party democratic system. Its legislative power,
executive power and judicial power are separated for the purpose of reciprocal
control, check and balance among themselves. These three branches of sovereign
power are shared among the Union, Regions, States and Self-Administered Areas
[section 11, the 2008 Constitution].

2.
A Brief Legal History

2.1
During the Reign of Monarchy

Before
the British occupation, Myanmar was ruled by absolute monarchs [“Thet Oo San
Pine” system in Burmese language] and thus Kings hold the supreme power in executive,
legislative and judiciary. In the executive function, the King was the highest
authority and assisted by ministers (Wonmin), mayors (Myosar),
town-chiefs (Thanbyin), village-headmen (Kalan, Ywarsar)
and government servant (Luhlin Kyaw). The sole
legislative power was vested to the King and he was assisted by the Parliament (Hluttaw).
The King was also the highest authority in judiciary and assisted by the
Supreme Queen, Crown Prince, Princes as well as ministers in the parliament,
judges appointed by the king, mayors, town-chiefs and village-headmen. In the
ancient time, the practice of “trial by ordeal” was common and most criminal
punishments were fines. There were only four types of crimes punishable by
death penalty, i.e., murder, rebellion, insurgency and rape.

The
beginning of the formal judicial system in Myanmar can be traced back to the
epoch of Bagan dynasty (849-1287 A.D). There were three primary sources
of law, namely, yazathat, dhammthat and phyat-htone. “Yazathat”
means the King’s Royal Edicts and Ordinances which composed of King’s command
and criminal laws. “Dhammthat” is derived from the “Hindu
Dharmashatra” (treaties on law) which later formed as Myanmar Customary
Law.[1]Phyat-htone means the judicial decisions made by the King’s Hluttaw and
various Benches and Courts in the country.

2.2
During the British Occupation

In
1886, the British established the Court of Judicial Commissioner for the Upper
Myanmar in Mandalay. The Court of the Lower Myanmar was established in 1990 as
the highest appeal court. In 1922, the High Court of Judicature of Yangon was
established after the abolishment of the aforesaid two judicial organs.
Sub-Divisional Courts, District Civil and Session Courts, and Township Courts
were also established with specific jurisdiction. Besides, the British
introduced several criminal as well as civil laws including the Indian Penal
Code (1860), the Criminal Procedure Code (1862), the Indian Evidence Act (1872)
and the Civil Procedure Code (1859).[2]

2.3After
Independence

Even
after the independence on 4th January 1984, Myanmar continues to
apply the common law legal system as its basis.[3] The
Supreme Court, High Court and other subordinate Courts were established at
different levels under the Union Judiciary Act of 1948. The Supreme Court was
the highest court as well as final appeal court throughout the Union and its
decisions were binding over all other courts. In 1962, the Revolutionary
Council abolished the former judicial system and formed the Chief Court to be
in line with socialism. In 1974, it further introduced a new Constitution under
which the Central Court, the State and Divisional Courts, the Township Courts,
the Wards and Village Tracts courts were established.

In
1988, the State Law and Order Restoration Council enacted the Judiciary Law to
transform the aforesaid socialist judicial system. The Supreme Court and High
Court were re-established in the same year. In 2000, this was again repealed by
the Judiciary Law by the State Peace and Development Council in transforming
the formation of courts.[4]Lastly, in 2010, the Union Judiciary Law had been
enacted to adopt the current judicial system under the 2008 Constitution.

3.
Executive Organ

The Government of Myanmar is basically formed with the
President; Vice-Presidents; Ministers of the Union and the Attorney General of
the Union [section 20, the 2008 Constitution]. The executive
power of the Union is distributed among the Union, Regions, States and
Self-Administered Areas as prescribed by the Constitution. The executive
head is the President who takes precedence over all other
persons throughout the Union [sections 58, 199, the 2008 Constitution]. The President may appoint as well as dismiss the Ministries of the
Union Government and designate the number of the Union Ministers as necessary
with the approval of the Pyidaungsu Hluttaw [sections 202, 232, 233,
234, 235, the 2008 Constitution]. He may further
appoints the Attorney General of the Union to seek legal advice and assign
duties on legal matters, with the approval of the Pyidaungsu Hluttaw, and
Deputy Attorney General to assist the Attorney General [sections 237, 239, the
2008 Constitution].

The Region and State Government is formed respectively
with the Chief Minister of the Region or State; the Ministers of the Region or
State; the Advocate General of the Region or State [section 248 (a) and (b),
the 2008 Constitution]. Generally, these region or state governments have the
responsibility to assist the Union Government in preserving the stability,
peace, tranquility and prevalence of law and order of the Union [section 250,
the 2008 Constitution]. The President appoints a Hluttaw representative as the
Chief Minister of the Region or State concerned with the approval of the
respective Region or State Hluttaw [section 261(c), the 2008 Constitution].

The administrative body of a Self-Administered Division or
Self-Administered Zone is called the leading body [section 275, the 2008
Constitution] which comprised of at least 10 members [section 276 (c), the 2008
Constitution]. The President has to appoint the person who is nominated as the
Chairperson of the Self-Administered Division or the Self-Administered Zone
concerned [section 276(f), the 2008 Constitution]. As for the administration of
Nay Pyi Taw, the Union Territory, the President has to form a Nay Pyi Taw
Council and appoint persons who have the qualifications prescribed in the 2008
Constitution as Chairperson as well as members of Nay Pyi Taw Council [sections
284 and 285, the 2008 Constitution].

4.
Legislative System

The legislative authority is vested in the “Pyidaungsu
Hluttaw” (The
National Parliament) which comprises of the two Hluttaws,
namely, the “Pyithu Hluttaw” (The People’s Assembly or House of
Representatives) and the “Amyotha Hluttaw” (The National Assembly
or Senate) [section 74, the 2008 Constitution]. The Pyithu Hluttaw is formed
with with a maximum of 440 seats comprises of not more than 330 representatives elected on the basis of
township as well as population and not more than 110
representatives who are the Defence Services personnel
nominated by the Commander-in-Chief of the Defence Services [section 109, the
2008 Constitution]. The Amyotha Hluttaw is formed with a
maximum of 224 seats comprises of 168
representatives elected in equal numbers from Regions as well as States and 56 representatives who are the Defence
Services personnel nominated by the Commander-in-Chief of the Defence
Services [section 141, the 2008 Constitution].

4.1
Legislative Process in the
Pyidaungsu Hluttaw

The Pyidaungsu Hluttaw has the power to enact laws for the
entire or any part of the Union related to matters prescribed in Schedule One
of the Union Legislative List [section 96, the 2008 Constitution]. Other
matters not enumerated in the legislative list of the Union, Region or State
and Self-Administered Division Leading Body or Self-Administered Zone Leading
Body fall under the legislative power of the Pyidaungsu Hluttaw [section 98,
the 2008 Constitution]. It can also enact laws relating to the Union
territories when it is necessary [section 99, the 2008 Constitution].

Any union level executive body has the power to submit the
bills relating to matters which they administered among the matters included in
the Union Legislative List to the Pyidaungsu Hluttaw. However, bills relating
to national plans, annual budgets and taxation are required to submit
exclusively to the Pyidaungsu Hluttaw [section 100, the 2008 Constitution]. A
bill submitted to the Pyidaungsu Hluttaw, except those under the exclusive
legislative power of the Pyidaungsu Hluttaw, is still entitled to initiate and
discuss at either the Pyithu Hluttaw or the Amyotha Hluttaw [section 101, the
2008 Constitution].

If a Bill initiated in the Pyithu Hluttaw or the Amyotha
Hluttaw is approved by both Hluttaws, it shall be deemed that the Bill is
approved by the Pyidaungsu Hluttaw. If there is a disagreement between the
Pyithu Hluttaw and the Amyotha Hluttaw concerning a Bill, the Bill shall be
discussed and resolved in the Pyidaungsu Hluttaw [section 95, the 2008
Constitution].

A bill which is approved or deemed to be approved by the
Pyidaungsu Hluttaw will then be sent to the President for his signature. He has
to send the bill back to the Pyidaungsu Hluttaw with his signature or comments
within 14 days. If he does not do so within the prescribed period, the bill can
be promulgated on the next day after the completion of that period and thereby
the bill will become a law [section 105, the 2008 Constitution]. When the
President sends back the bill together with his comments within the prescribed
period, the Pyidaungsu Hluttaw may accept his comment and resolve to amend the
bill or to approve as it is without accepting his comments. In either case, the
bill will be sent back to him for his signature. If the bill is not signed by
the President within seven days, it will become law as if he had signed it on
the last day of the prescribed period [section 106, the 2008 Constitution].

A bill signed by the President or deemed to have been
signed will need to be published in the official gazette. Finally, the bill
becomes a law on the day of publication itself, nevertheless, without prejudice
to the power of Parliament to postpone the operation of any law or to make laws
with retrospective effect [section 107, the 2008 Constitution].

The Pyidaungsu Hluttaw also have the power to make
resolution on matters relating to ratifying, annulling and revoking any
international, regional or bilateral treaties; and may confer the authority to
the President to conclude, annul and revoke any kind of said agreements without
the approval from it [section 107, the 2008 Constitution].

4.2
Legislative Process in the
Pyithu Hluttaw and the Amyotha Hluttaw

After the enactment of any rule, regulation, or by-law by
the Pyidaungsu Hluttaw, the relevant executive body may distribute and submit
the said legislation to its representatives of the Pyithu Hluttaw or the Amyotha
Hluttaw and thereby representatives may move to annul or amend the said
legislation within 90 days from the day of submission and distribution. If
there is any disagreement between the Pyithu Hluttaw and the Amyotha Hluttaw
with regard to annul or amend any legislation, it shall be submitted to the
Pyidaungsu Hluttaw [sections 137 and 157, the 2008 Constitution].

A Bill submitted by any Union level organization are
deemed to be initiated in the Pyithu Hluttaw and discussed as well as resolved
in the Pyithu Hluttaw if it is sent in accordance with the prescribed
procedures of the Pyidaungsu Hluttaw [section 138 (a), the 2008 Constitution]. If a Bill submitted by any Union level organization is sent to the
Amyotha Hluttaw in accordance with prescribed procedures of the Pyidaungsu
Hluttaw, it shall be deemed that such Bill is initiated in the Amyotha Hluttaw
and thus shall be discussed as well as resolved in the Amyotha Hluttaw [section
158 (a), the 2008 Constitution]. Bills relating to other
matters, except the matters stated in the Schedule One of Union Legislative
List where the Bill shall be submitted and passed exclusively by the Pyidaungsu
Hluttaw, can be initiated in either the Pyithu Hluttaw or the Amyotha
Hluttaw in accord with the prescribed procedures [section
136 and 156, the 2008 Constitution]. A bill passed by
one house shall be sent to other house to continue to discuss and resolve it
[sections 138 (c) and 158 (c), the 2008 Constitution].

After receiving a Bill sent to the other house, the house
in which the bill is originated may resolve to agree or disagree, or agree with
amendments and the bill shall be sent back to the other house together with its
resolution. When the house in which the bill is originated accepts amendments
made by the other house, and then send it to the Pyidaungsu Hluttaw. If there
is any disagreement between two houses relating to a bill, it shall take the
resolution of the Pyidaungsu Hluttaw [sections 139 and 159, the 2008
Constitution].

4.3
Legislative Process in the
Region Hluttaw or State Hluttaw

Each
of the fourteen major administrative regions and states has its own Hluttaw,
namely, Region Hluttaw (Region Assembly) or State Hluttaw (State Assembly)
[sections 49 and 161, the 2008 Constitution]. The Region or State Hluttaw have
the power to enact laws for the entire or any part of the Region or State
related to matters prescribed in Schedule Two of the Region or State Hluttaw
Legislative List [section 188, the 2008 Constitution]. However, any legislation
made by the Region or State Hluttaw has to be in conformity
with the Constitution and the relevant Union law [section 89 (b), the
2008 Constitution].

4.4 Legislative Process in the Self-Administered
Division and Self-Administered Zone Leading Bodies

Self-Administered Division or the Self-Administered Zone
Leading Bodies are vested the legislative power relating to the matters listed
in the Schedule Three for respective Divisions or Zones [section 196, the 2008
Constitution].

5.
Judiciary

Courts of the Union are established under the 2008
Constitution and these include the Supreme Court of the Union,
High Courts of the Region, High Courts of the State, Courts of the
Self-Administered Division, Courts of the Self-Administered Zone, District
Courts, Township Courts and the other Courts constituted by law;
Courts-Martial; and Constitutional Tribunal of the Union [section 293,
the 2008 Constitution]. On the 28th October
2010, the Union Judiciary Law [Hereinafter “The Union Judiciary Law 2010”] was
enacted to implement judicial works of aforementioned courts in the present
Judicial System [Preamble, The Union Judiciary Law 2010].

An informative presentation on the Judicial System and
Court Proceedings in Myanmar can be found here.

5.1
The Supreme Court of the Union

The
Supreme Court is the highest Court of the Union without prejudice to
the jurisdiction of the Constitutional Tribunal and the Courts-Martial [section
294, the 2008 Constitution]. The Court is situated in Nay Pyi Taw and headed by
the Chief Justice of the Union. There may be appointed from a
minimum of seven and a maximum of eleven judges of the Supreme Court including
the Chief Justice [sections 299 (a) and (b), the 2008 Constitution]. The President can appoint the Chief Justice and Judges of the
Supreme Court after seeking approval from the Pyidaungsu Hluttaw which has no
right to refuse the person nominated by the President for the appointment
unless it can clearly be proved that the persons do not meet the qualifications
for the post [sections 299 (c) and (d), the 2008 Constitution].

The
Supreme Court has original jurisdiction in matters arising out of bilateral
treaties concluded by the Union; in disputes, except the Constitutional
problems, between the Union Government and the Region or State Governments, or
among the Regions, among the States, between the Region and the State and
between the Union Territory and the Region or the State; piracy and other
offences committed at ground or international water or airspace by violating
international law; and in other matters as prescribed by any law [section
295(a), the 2008 Constitution; section 11, the Union Judiciary Law 2010]. It
has the appellate jurisdiction to decide judgments passed by the High Courts of
the Regions or the States and judgments passed by the other courts in accord
with the law [section 295(d), the 2008 Constitution; section 12, the Union
Judiciary Law 2010]. It also has the revisionary power over any judgment or
order passed by any subordinate court [section 295(e), the 2008 Constitution;
section 13, the Union Judiciary Law 2010] and the jurisdiction on confirming
death sentence as well as appeal against the death sentence [section 14, the
Union Judiciary Law 2010]. It further has the Jurisdiction to
transfer a case from a Court to itself or to any other Court [section 15, the
Union Judiciary Law 2010]. It possesses the power to issue Writ of Habeas
Corpus; Writ of Mandamus; Writ of Prohibition; Writ of Quo Warranto; and Writ
of Certiorari. However, this power to issue writs is suspended in the areas
where the state of emergency is declared [section 296, the 2008 Constitution;
section 16, the Union Judiciary Law 2010]. The decisions of the Supreme Court
are final as well as conclusive and thus it is the final court of appeal in the
entire Union [section 295 (b) and (c), the 2008 Constitution; sections 18 and
22, the Union Judiciary Law 2010].

5.2
High Courts of the Region and High Courts of the State

A high court is established for
every Region and the State of the Union [section 305, the 2008 Constitution]. Each
High Court is headed by the Chief Justice of the High Court of the Region or
the Chief Justice of the High Court of the State. There may be appointed
from a minimum of three and a maximum of seven judges
including the Chief Justice of the High Court [section 308 (a), the 2008
Constitution]. The President can appoint the Chief Justice and
the Judges of the High Court, in co-ordination with the Chief Justice of the
Union as well as the Chief Minister of the respective Region or State, after
seeking approval from the respective Region or State Hluttaw which has no right
to refuse the person nominated by the President for the appointment unless it
can clearly be proved that the persons do not meet the qualifications for the
post [section 308 (b), the 2008 Constitution].

Every High Court of the Region or
State has jurisdictions to adjudicate on original case, appeal case, revision
case and other matters prescribed by any law [section 308, the 2008 Constitution; section 38,
the Union Judiciary Law 2010]. It has the appellate
jurisdiction on the judgements, decrees and orders passed by all other
subordinate courts [section 39, the Union Judiciary Law 2010]. It also has the power to supervise District Courts as well as
Township Courts in the Region or the State and Court of the Self-Administered
Division as well as Court of the Self-Administered Zone if there is
Self-Administered Areas in the Region or State [section 314, the 2008
Constitution]. It further has the jurisdiction to
transfer a case from a Court to itself or to any other Court within the
respective Region or State [section 40, the Union
Judiciary Law 2010]. It has unlimited jurisdiction to
hear and decide both criminal and civil suits.

Read
more about the High Courts of the Region and High Courts of the State, here.

5.3
District Courts, Courts of the
Self-Administered Division and Courts of the Self-Administered Zone

District Courts, Courts of the
Self-Administered Division, and Courts of the Self-Administered Zone have the
jurisdiction to hear both criminal as well as civil cases, appeal cases,
revision cases and other matters prescribed by any law [section 315, the 2008
Constitution; sections 53, 54 the Union Judiciary Law 2010].
The respective High Court of the Region or State supervises the appointment of
Judges at this level of Courts [section 318(a), the 2008 Constitution]. Judges at this level are granted the right to try serious
criminal cases and civil suits not exceeding 500 million Kyats under original
jurisdiction.

5.4
Township Courts

Township Courts have the jurisdiction to try both criminal
as well as civil cases and other matters prescribed by any law [section 316, the 2008
Constitution; section 56, the Union Judiciary Law 2010]. The
respective High Court of the Region or State supervises the appointment of
Judges at this level of Courts [section 318(a), the 2008 Constitution]. These levels of courts are mainly courts of original
jurisdiction. Judges at this level can pass a sentence up to seven years
imprisonment. They can try civil suits in which the amount in dispute or value
of the subject matters is not exceeding 10 million kyats. They also exercise
jurisdiction over juvenile cases.

The Courts-Martial are established
under the 2008 Constitution in order to adjudicate Defence Services personnel [section 319, the 2008 Constitution].

5.6
The Constitutional Tribunal of the Union

The Constitutional Tribunal of the Union is formed with
nine members, i.e., three members chosen by the President, three members chosen
by the Speaker of the Pyithu Hluttaw and three members chosen by the Speaker of
the Amyotha Hluttaw, and one member from among nine members to be assigned as
the Chairperson [sections
320, 321, the 2008 Constitution]. It
essential functions are to interpret the provisions under the Constitution,
decide constitutional disputes in the Union and review whether the laws
promulgated are in conformity with the Constitution [section 322, the
2008 Constitution]. The President can appoint the Chairperson
and its members after seeking approval from Pyidaungsu Hluttaw which has no
right to refuse the persons nominated by the President for the appointment
unless it can clearly be proved that they are disqualified for the post [sections
327, 328, the 2008 Constitution].

The President, the Speaker of the Pyidaungsu Hluttaw, the
Speaker of the Pyithu Hluttaw, the Speaker of the Amyotha Hluttaw, the Chief
Justice of the Union and the Chairperson of the Union Election Commission have
the right to submit any constitutional matter to the Constitutional Tribunal
and seek for the interpretation, resolution and opinion [section 325, the 2008 Constitution]. Besides, the Chief Minister of the Region or State, the Speaker
of the Region or State Hluttaw, the Chairperson of the Self-Administered
Division Leading Body or the Self-Administered Zone Leading Body, and
Representatives numbering at least ten percent of all
the representatives of the Pyithu Hluttaw or the Amyotha Hluttaw may also have
the right to submit constitutional matters to the Constitutional Tribunal in
accordance with the prescribed procedures and obtain the interpretation,
resolution and opinion [section 326, the 2008 Constitution]. A Court, which submits any case involving constitutional issue to
the Constitutional Tribunal in accordance with the prescribed procedures for
its opinion, has to stay the trial until it receives such a resolution. In
addition, its resolution is final and conclusive [section 323, the 2008
Constitution].

5.7
Other Courts

There
are also other courts with specific jurisdiction, namely, Juvenile Courts to
try offences committed by minors, Municipal Courts to try municipal offences
and Motor Vehicle Courts to try road traffic offences.

In
term of hierarchy, Township Courts and other Courts are courts of first
instance; District Courts, Courts of the Self-Administered
Division, and Courts of the Self-Administered Zone are courts of first appeal;
the High Courts of the Regions and the High Courts of the States are courts of
second appeal; and the Supreme Court is the court of final appeal.[5]

For more about the Judicial System and Court Proceeding in
Myanmar, please read.

Sources of law in Myanmar comprise of constitutions,
legislations, customary law and English common law. English common law rules,
developed and adopted in Myanmar case law during the British occupation, are
applied where there is absence of local legislation governing a particular
matter before the Courts. Moreover, judges are granted discretionary power to
decide the matter in accordance with justice, equity and good conscience in the
absent of any applicable law.

Any law, rule, regulation or by-law passed by the
Pyidaungsu Hluttaw and signed by the President or deemed to have been signed
are published in the Myanma
Naingngan Pyantan (Myanmar Gazette). The Gazette is published by the News
and Periodicals Enterprise (NPE) under the Ministry of Information of Myanmar. Union Attorney General’s Office
also annually publishes laws, rules, regulations or by-laws enacted in
respective year under the title of “Myanmar Laws” in both Burmese and English.

Among
all decided cases from the superior courts, some are selected by the conjoint
selection board, which comprises of judges from the Supreme Court of the Union
and Deputy Attorney General as well as Director General from the Union Attorney
General’s Office, in order to publish in the annual law report published by the
Supreme Court of the Union. Cases decided by the Constitutional Tribunal of the Union
are published in its official website.

The
World Law Guide page on Myanmar containing some laws can be found here.

7.
Legal Profession

Legal
professionals comprise of judges, judicial officers and lawyers. Lawyers can be
classified into two types, namely, Advocates and Higher Grade Pleaders. An
Advocate is entitled to appear before any Court and tribunal in the Union
whereas a Higher Grade Pleader is licensed to practice only before subordinate
courts. Legal practitioners are governed by the Legal Practitioners Act 1879
and the Bar Council Act 1926.

[3] See Tun Shin, “As
Myanmar belongs to the Common Law Legal System family, Myanmar Judicial System
is deeply rooted with legal maxims, judicial customs and precedents which are
enshrined with International Legal Principles that are utilized by successive
judges all over the world,” vol. XX, No. 296, The New Light of
Myanmar(10 February 2013) pp. 1 and 8.